KOO YIK CHUNG by KOO KIN WAH his next friend v. DILIGENT WIN LTD (In liquidation)

DCEC 926/2007

[2019] HKDC 1187

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 926 OF 2007

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DECISION

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1.  Before I approve this ex parte summons issued by the applicant’s newly assigned solicitors by the Legal Aid Department, I need to briefly go into the background of this case. I am extremely grateful to Ms Ho, the Legal Aid assigned solicitor for the applicant, the injured employee, Mr Koo Yik Chung, for the helpful chronology she has quickly prepared in the course of the hearing. Mr Koo, the applicant in these proceedings, met a very serious accident in the course of employment on 1 September 2005.

2.  Through the Legal Aid assigned solicitors, Messrs. Tung, Ng, Tse & Heung, these proceedings were commenced on 25 July 2007.  Shortly after the commencement of these proceedings, there was a change of solicitors to Messrs. Cheung, Chan & Cheung (hereafter I refer to this firm as “the Former Solicitors”).

3.  In the course of these proceedings, the Former Solicitors had previously written to the court expressing their difficulty in taking instructions from the injured employee, expressing their doubt as to the employee’s mental capacity to give instructions.  As a result of this information disclosed by the Former Solicitors in a letter dated 4 May 2009, the court expressed concern as to the employee’s mental state in carrying on with the proceedings and the Former Solicitors were reminded of the necessity to comply with Order 80 (of the Rules of the District Court).

4.  As a result of the court’s direction, the Former Solicitors then instructed Dr Kan, a neurologist.  Dr Kan, after an examination conducted on Mr Koo, issued a report dated 17 December 2010, opining that Mr Koo was a person described as a mentally incapacitated person (“MIP”) within the meaning of the Mental Health Ordinance, notwithstanding a report from the government psychiatrist written by Dr Chan dated 5 February 2010 stating that Mr Koo was not a MIP.

5.  On the strength of Dr Kan’s report, the Former Solicitors filed an affirmation in support of an application to appoint Mr Koo’s father as the next friend to act on behalf of Mr Koo.  The court, on 30 May 2011, acceded to the application by appointing Mr Koo’s father to act as the next friend.  Thereafter, these proceedings had all along been proceeded with by the father acting as the next friend of Mr Koo.

6.  Since the said order of 2011, there was for a number of years’ delay. This was because the respondent, a limited company, was dissolved. It was then necessary for a separate application to be made to have the respondent as a dissolved company restored to the Companies Registry.

7.  This case first came to my attention in around November 2017. After having observed the long delay in these proceedings, I directed the Former Solicitors to explain the long delay and to file an updated memorandum in relation to the latest condition of Mr Koo and to his care and maintenance.

8.  Subsequently, in January 2018, there was an affirmation of the next friend and also a supplemental memorandum as to the condition of Mr Koo.  The information that was disclosed in the affirmation and also the supplemental affirmation was more about the physical condition of Mr Koo rather than addressing the issue of his mental capacity. There was also a request from the next friend asking for payment out from the settlement sum by way of periodical payments.

9.  In light of the information that was placed before this court, I was concerned with the mental capacity of Mr Koo. In view of the relatively large amount of the payment in court, I declined the next friend’s request for payment out and directed the Former Solicitors to make an application for the setting up of a committee for the proper management of the money paid into court for the settlement of these proceedings.

10.  The order directing the Former Solicitors to make an application for the setting up of the committee was made in February 2018.  Despite one letter from the Former Solicitors in December 2018 informing the court of the alleged uncooperative attitude of the next friend, there was no further information from them as to why a committee was not yet set up. The committee was never set up. Subsequently, there was a notice of reassignment of legal aid for the applicant, Mr Koo himself. Hence this summons for an order ordering the father to cease to act as the next friend of the applicant and for an order of payment out to Mr Koo.

11.  The ground in support of this application mainly came from the medical reports of two registered psychiatrists, Dr Leung and Dr Wong.  Both of these two psychiatrists are registered under section 2(2) of the Mental Health Ordinance as the approved doctors listed in section 2(2) of the Mental Health Ordinance.

12.  When I was considering this application before the hearing today, I was concerned as to whether Mr Koo had indeed ceased to be an MIP despite the two psychiatrists’ opinions.  I was concerned because previously the court had acted upon the expert opinion of Dr Kan, who, despite having had sight of the government hospital report that I earlier referred to, went ahead to certify Mr Koo as an MIP.  There was no disclosure to the court that in fact Dr Kan was not on the approved list of doctors to certify a person as an MIP. 

13.  Fortunately, Mr Koo appears together with his solicitor today.  I have had the opportunity of having a direct inquiry and conversation with Mr Koo himself.  After having had that opportunity of talking to Mr Koo and having had the chance to review the contents of the two psychiatrists’ reports, I accept the opinions of the two psychiatrists and am satisfied that Mr Koo has ceased to be an MIP. I am prepared to grant the orders in terms of paragraphs 1, 2 and 3 (of the summons).

14.  I will come to deal with the costs -  whether I should, as prayed for in paragraph 6 of the summons, order the respondent to pay for the costs of this application.

15.  The solicitors for Mr Koo might have been under the impression that this application is related to an MIP, and hence issued the summons ex parte.  Therefore, the summons was not served on the respondent.   I agree that the orders I have just granted could be disposed of on an ex parte basis, but this is not for the issue of costs unless there is consent from the respondent to pay costs. But this is not the case.

16.  In the circumstances, to be fair to the respondent, I am not satisfied that I should make a costs order against the respondent as prayed in paragraph 6 (of the ex parte summons).    I therefore reserve costs until the respondent has had the opportunity to deal with the issue of costs.  I will hear further submissions from Miss Ho as to how to deal with this costs issue in accordance with the directions to be given. I therefore reserve the costs of this summons.

17.  There is another matter that I should deal with, that is, the non-compliance of the Former Solicitors with my order dated 13 February 2018, directing them to make an application for the setting up of a committee.  In light of the unsatisfactory way the Former Solicitors have dealt with this matter, I direct, as per the draft directions of Miss Ho, that the Former Solicitors write to the court within 21 days to explain the reason for failing to take steps to apply for the formation of committee as directed by this court.

18.  I further direct that this order, together with the reasons that I just gave today, be also served on the Director of Legal Aid for the Director to consider what proper action should be taken should it be found that the Former Solicitors had not acted reasonably in these proceedings that led to the incurring of additional costs as a result of the issuance of this ex parte summons.  I am indeed concerned because the costs of this summons are still reserved.  There may be an issue as to whether the Former Solicitors should personally be liable for the costs that cannot be recovered from the respondent bearing in mind that the present solicitors acting for Mr Koo are not prepared to waive any costs unrecovered from the respondent.

19.  For the reasons stated above, I direct the Former Solicitors and the Director of Legal Aid be served with a copy of the sealed order as well as the reasons that I just gave.